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Effective Protection |
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Towards a Definition of Effective Protection“Failure to provide solutions makes us all guilty of the degradation of refugees. It can also lead to a rise in crime and the threat of further conflict or instability. We must guard against this. The unacceptable alternatives are more protracted refugee situations, more refugees languishing in refugee camps year after year, more refugees taking desperate measures to find safety and a better future, and more refugees being exploited by criminal networks.” – UN High Commissioner for Refugees Background: How Temporary Protection Visas Target 'Secondary Movers'In September 2001, the Government introduced new laws prohibiting TPV holders from obtaining PPVs if they spent more than seven days in a ‘safe’ country (one where they could have ‘sought’ and ‘obtained’ ‘effective protection’) en route to Australia and did not apply for a PPV by 27 September 2001. Of the 6,535 refugees with TPVs, 2,785 had not applied by the cut-off date, many on advice from DIMIA. At the same time, it introduced two new types of TPVs designed to punish refugees making ‘secondary movements’. The first, TPV subclass 447, prevents unauthorised boat people arriving in a part of Australia excised from the migration zone, like Christmas Island, from obtaining a PPV if they spent more than seven days in a country declared ‘safe’. Instead, they can only apply for a TPV, and if successful still must re-apply for a TPV every three years. Since TPVs are denied access to family reunion (i.e. to sponsor a wife or child) and cannot return if they leave Australia to visit family, many are effectively forced to choose between safety in Australia and seeing their family again. The second, TPV Subclass 451, denies those assessed as refugees in ‘transit’ countries like Indonesia from obtaining PPVs. Instead, they can only apply for a 5-½ year TPV and a PPV after 54 months. During this time, they cannot apply for family reunion and live in fear of one day being deported back to the regimes from whom they fled. When they are finally able to apply for PPVs, they also have to demonstrate that they did not stay in a ‘safe’ country for more than seven days. The problem is that these so-called “secondary movers” are often just as “deserving” as refugees in camps overseas. ‘Effective Protection’As indicated in the DIMIA discussion paper and the legislation referred to above, ‘secondary movement’ occurs when an asylum seeker, who had been in a country for more than 7 days in which he or she could have “sought and obtained effective protection” (from refoulement) from the country concerned or UNHCR, then leaves this ‘country of first asylum’ to seek asylum in another country (i.e. a secondary movement). In the Government’s view, those who bypassed this form of “effective protection from refoulement” should be penalised to deter other secondary movers. However, this is an extremely limited and reductionist view of what constitutes “effective protection” when compared to international thinking. In March 2000, for example, UNHCR proposed ten benchmarks to Pueblo Member States to use in evaluating whether their national legal and administrative frameworks ensured that refugees and asylum-seekers are treated fairly, humanely and in accordance with international standards: Ten Benchmarks for ‘Effective Protection’1. Accession to the International Refugee Instruments UNHCR’s Director of International ProtectionIn October 2004, in her speech to UNHCR’s Executive Committee, Erika Feller, UNHCR’s Director of International Protection raised a number of minimum standards for assessing whether effective protection exists. In setting out the minimum requirements of “effective protection”, the Director emphasized that ascertaining the availability of protection should be informed by the rights set out in the 1951 Convention and the 1967 Protocol as well as other international human rights instruments. It was stated that effective protection is sufficient if, at a minimum, the following is reliably guaranteed:
Based on the above stated indicators, UNHCR’s regional office in Canberra made the following observations on effective protection in Indonesia: “the protection situation in Indonesia cannot be characterized as affording effective protection. Indonesia is not signatory to the 1951 Convention relating to the Status of Refugees nor to the 1967 Protocol; neither does it have any legislative framework for the protection of refugees. The country thus lacks a legal foundation for international protection of refugees based on which the minimum requirements as set out above could be reliably guaranteed.” Asylum seekers and refugees in Indonesia do not have lawful residence in the country, and are tolerated by the authorities, thus risking arbitrary detention by local law enforcement agencies, and even refoulement under the Immigration Law. Despite UNHCR’s intervention, legal regularization of the status of asylum seekers and refugees with the authorities has so far been unsuccessful. There is no lawful access for these persons to the labour market and thus they are not able to work legally, which obviates any adequate and dignified means of existence. There is no possibility of exercising any civil, economic, social or cultural rights. Durable solutions are not guaranteed either, and there are considerable numbers of UNHCR recognized refugees who are rejected for resettlement, and who remain without any prospects of a durable solution. Furthermore, there are no options for family reunification, nor any systematic means, established by the State, of identifying specific protection needs of refugees, including those with special vulnerabilities, nor of addressing them. The presence of UNHCR in a country cannot be equated with the provision of effective protection. International protection is afforded by States and not by an international organization. The protection activities to be carried out by UNHCR in exercising its mandate as elaborated in Art. 8 of its Statute, which are primarily promotional in nature, reflect that UNHCR does not itself afford protection. It may also be added that UNHCR in Indonesia has a limited presence, and does not have field offices outside the capital city, Jakarta, in a country that consists of many thousands of islands. Moreover, the facts reveal that the refugee in this case was not aware of the existence of UNHCR in Indonesia, and thus he could not have approached the office to seek assistance. This is a factor which should be taken into account in terms of the weight placed on asylum seekers having access to UNHCR in Indonesia.” These benchmarks and minimum standards are much broader than the narrow focus on ‘protection from refoulement’ or ‘a UNHCR presence’ emphasized in Australia’s ‘safe country’ legislation. UNHCR’s Executive Committee Conclusion No. 58 on Irregular Movement is also broader in stipulating that the person be “permitted to remain” in the country and “treated in accordance with recognised basic human rights standards until a durable solution is found for them”. Such rights include not just the right to protection from refoulement contained within the Refugee Convention, but also the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child. The second problem is that the logic displayed is that either a person had effective protection or they are a secondary mover. There is thus no consideration of the unique circumstances of individuals, such as whether they had good reason to fear approaching a UNHCR office or whether they were at risk of sexual exploitation or abuse. Furthermore, there is the built-in assumption that applicants had obtained within seven days a perfect knowledge of all the options available to them to avail themselves of the protection of the country they resided in for more than seven days. This is hardly likely given asylum seekers are usually smuggled through countries and smugglers have a vested interest in not informing people of their options. The legislation is also based on the false premise that asylum seekers are required to lodge an asylum application in the first country they reach. Yet the 1951 Refugee Convention does not state where an asylum application should be lodged. What it does state is that all asylum seekers should be treated in the same manner regardless of their mode of arrival. If Australia is serious about addressing secondary movement, then it must address the root causes of secondary movement. Narrowly defining the grounds upon which a refugee is permitted to move in search of protection only serves to justify and legitimize harsh policies to deter and punish refugees. It does not address the root causes of such movements. At best, it only discourages movements toward certain countries. At worst, it pushes refugees back into the hands of people smugglers and the burden back on to other countries by putting pressure on those countries to implement similar measures. The kind of ‘ping-pong’ effect that would eventuate would seriously undermine the international system of protection, which draws its strength from sharing responsibilities. To find a solution, we must first understand why refugees are forced to move on in search of protection. Factors causing irregular/secondary movement:
This is by no means an exhaustive list, but it does highlight the lack of durable solutions and the absence of effective protection as two of the major causes for irregular movement. The answer to the first question lies in more rigorously exploring options for one or a combination of the three durable solutions for particular caseloads. This requires a shift from the current focus on temporary protection. The second, ‘effective protection’, is predicated on the existence of a government that is willing and able to provide the aforementioned benchmark protections. The question here thus becomes one of how can Australia best encourage and support governments to play such a role. While the NCCA is pleased that Australia does provide resettlement places, more can be done to improve processing and to provide support to help create and maintain “effective protection” in first asylum countries (FACs). One way to provide more support to FACs - in line with Australia’s commitment to Goal Three of the Agenda for Protection - is to provide greater recognition and consideration of the burden FACs have in, for example, trade and debt negotiations. Another opportunity Australia has is to actively encourage international cooperation through the UNHCR’s “Convention Plus” initiative. Perhaps the best course of action for the moment would be for Australia to lead by example through demonstrating its commitment to implement the Agenda and its active support of the Convention Plus initiative. This would put pressure on other resettlement countries to do the same just by virtue of the effect of it being a positive role model. More substantially, it would lead to: 1) a lessening of the burden placed on other countries and a reduction in the pressure placed on other states to introduce similar deterrence measures, 2) greater recognition of the roles of first asylum, transit and destination countries, and cooperation between them and; 3) generate more support for FACs like Pakistan and Iran. Australia must do more to convince Europe, the USA, Canada, Japan and other developed states to increase support for FACs and countries like Pakistan and Iran to play their part in keeping the borders open and providing effective protection. It should also encourage and support transit countries such as Malaysia, Thailand and Indonesia to become countries that are both willing and able to offer effective protection. Recommendations:
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